Saturday, August 22, 2009

FAQ: What Is A Durable Power Of Attorney?

Planning for incapacity can be as important as planning for the distribution of your estate. Degenerative diseases such as Alzheimer's or serious accidents can rob anyone - old or young - of the ability to handle his or her personal and financial affairs. In addition, catastrophic illness or long-term custodial care needs can substantially deplete or even obliterate family resources.

If tragedy strikes, you may not have the time or the capability to ensure that things are taken care of and your wishes followed, unless you spell them out in advance. One estate planning tool that is used for incapacity or unavailability is the Durable Power of Attorney.

What Is A Durable Power Of Attorney?

The Durable Power of Attorney for Assets names the individuals that you desire to serve as your attorneys-in-fact, sometimes called your "agents," to deal with matters affecting your property. You are called the "principal." Your agents are given the power to transfer property to your Revocable Trust. Your agents are also given the power to act on your behalf, as if you were present and acting, with respect to your property, all as set forth in the Durable Powers of Attorney.

Executing a Durable Power of Attorney does not mean that you can no longer make decisions; it just means that another person can act for you if you cannot do so. For example, you may be hospitalized for a brief period of time or out of the country and need someone to deposit your checks in the bank or pay your bills. You can revoke the agent's authority under the power of attorney at any time if you become dissatisfied with what they are doing.

Being a "durable" power means that the agents are authorized to continue to act during any periods of time when you are incapacitated. The agent will still be obligated to act in your best interest, making decisions and using your money and property only for your benefit. If you do not establish a Durable Power of Attorney and you become mentally incapacitated, it may be necessary for a court to appoint a guardian or conservator for you.

Can I Execute A Durable Power Of Attorney When I Am Mentally Incapacitated?

No. In order to create a Durable Power of Attorney, you must know and understand what you are doing. A person who is mentally incapacitated is not capable of meeting these requirements.

Can I Use A Durable Power Of Attorney Form From The Internet Or Bookstore?

The form power of attorney forms prepared by Internet or do-it-yourself publishing companies often do not give adequate advice on gifting, long term care and estate planning. Ideally, a durable power of attorney is integrated with the rest of a person's estate plan and is specifically tailored to their choices (including, for example, their choices of executors and trustees).

Does The Durable Power Of Attorney Cover My Health Care Decisions?

The Advance Health Care Directive identifies the individuals that you desire to act for you if you become unable to make medical decisions for yourself. The most common decision involves when, and under what circumstances, extraordinary measures should be used to prolong life. There are also sections of the Advanced Health Care Directive which deal with whether or not you desire to be an organ donor.

Posted by Henry (Hank) J. Moravec, III, a partner at Moravec, Varga & Mooney, A Partnership. For a free 30 minute consultation (telephonic or in person), you can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221.

He focuses his practice on Estate Planning, Trust and Probate Administration, Beneficiary and Trustee Representation, Probate Litigation, Tax Law, and Nonprofit Law. He represents clients throughout Southern California and his offices are conveniently located for clients in the Los Angeles, Santa Barbara, Orange, Riverside and San Bernardino Counties.

With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 or (818) 769-4221 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm has two offices and consultations and meetings can be held at either office.

The San Gabriel Valley office is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

The San Fernando Valley office is located at 4605 Lankershim Boulevard, Suite 718, North Hollywood, California 91602-1878.